Carmouche, Monica Ann v. State

Affirmed and Memorandum Opinion filed December 14, 2004

Affirmed and Memorandum Opinion filed December 14, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00768-CR

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MONICA ANN CARMOUCHE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from County Criminal Court at Law No. 6

Harris County, Texas

Trial Court Cause No. 1143007

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M E M O R A N D U M   O P I N I O N

Appellant Monica Ann Carmouche was charged by information with misdemeanor assault and convicted by a jury.  The jury assessed punishment at 300 days= confinement in the Harris County jail and a $500 fine.  In one issue, appellant contends the trial court erred in admitting records of two medical facilities because the State failed to establish the proper predicate for admission of these documents under the business records exception to the hearsay rule.  We agree; however, because we conclude the admission of the records was harmless error, we affirm the judgment of the trial court.

I.  Factual Background

In May 2002, Tambra Stickney sought to involuntarily commit her son Joshua to a drug treatment program and requested a mental health warrant for his arrest.  At the time, Joshua was staying with his father, Steve Stickney, and appellant, his father=s girlfriend.  The warrant was executed by constables on May 25, 2002, without Steve Stickney=s or appellant=s knowledge.  That evening, when appellant went to Tambra=s apartment looking for Joshua, an altercation between the two women ensued. Tambra suffered bruises and a broken arm as a result of the altercation, and she was taken by ambulance to the hospital.

After a jury convicted appellant and assessed punishment, this appeal followed.

II.  Issue Presented and Standard of Review

In her sole issue, appellant contends the trial court erred in admitting the business records of two medical facilities, St. Catherine and Memorial hospitals, as the business records of a third unrelated medical facility, Orthopedic Associates (AO.A.@). Appellant argues the records were improperly admitted because the State failed to offer them through the testimony of a qualified witness or by affidavit as required by Rule of Evidence 803(6), and, therefore, the records are inadmissible hearsay.  See Tex. R. Evid. 803(6).

A trial court has broad discretion regarding the admissibility of evidence, and we reverse only upon a showing of a clear abuse of that discretion.  West v. State, 124 S.W.3d 732, 734 (Tex. App.CHouston [1st Dist.] 2003, no pet.).  An abuse of discretion occurs when a trial court acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably.  Galliford v. State, 101 S.W.3d 600, 604 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d). When there is evidence supporting the trial court=s decision to admit evidence, there is no abuse and the reviewing court defers to that decision.  Osbourn v. State, 92 S.W.3d 531, 537B38 (Tex. Crim. App. 2002).

A. Did the Trial Court Err in Admitting the Medical Records?

During trial the State offered into evidence, as Exhibit 5, Tambra=s medical records from O.A.; however, in addition to the records from O.A., Exhibit 5 contained Tambra=s medical records from St. Catherine and Memorial hospitals.  The exhibit was offered in its entirety as the business records of O.A. through an affidavit signed by O.A.=s custodian of records.  Appellant=s trial counsel objected, stating that the records from St. Catherine and Memorial were inadmissible hearsay within hearsay because they were not part of the regularly conducted business activities of O.A., and the State had failed to establish an exception to the hearsay rule allowing for their admission.^[1]  The trial court overruled the objection.

Rule of Evidence 803(6) provides an exception to the hearsay rule for business records if the offering party shows (1) the records were made and kept in the regular course of business; (2) the business kept the records as part of its regular practice; (3) the records were made at or near the time of the event they contain; and (4) the person making the records or submitting the information had personal knowledge of the events being recorded.  See Tex. R. Evid. 803(6);^[2] Philpot v. State, 897 S.W.2d 848, 851B52 (Tex. App.CDallas 1995, pet. ref=d). This foundational requirement can be satisfied through testimony of the custodian of the records or other qualified witness, or by an affidavit that complies with Rule 902(10).  Tex. R. Evid. 803(6).

Third-party documents can become the business records of an organization and, consequently, admissible under 803(6), if the records are (1) incorporated and kept in the course of the testifying witnesses= business; (2) the business typically relies upon the accuracy of the contents of the document; and (3) the circumstances otherwise indicate the trustworthiness of the document.  Bell v. State, ___ S.W.3d ___, ___; No. 01-02-01258-CR, 2004 WL 1472002, at *2 (Tex. App.CHouston [1st Dist.] July 1, 2004, no pet.).  On the record before us, we conclude the affidavit accompanying Exhibit 5 falls short of these requirements and thus, does not establish that the records of St. Catherine and Memorial were the business records of O.A. 

The affidavit attached to Exhibit 5 was signed by O.A.=s custodian of records and states that O.A. kept the records as follows:

[I]n the regular course of business, and it was the regular course of business of [O.A.] for an employee or representative of [O.A.] with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such records; and the record was made at or near the time or reasonably soon thereafter.

Thus, the affidavit recites only the basic predicate under 803(6).  See Tex. R. Evid. 803(6).  It does not establish that St. Catherine=s or Memorial=s records were incorporated into O.A.=s records in the regular course of O.A.=s business, or that O.A. typically relies on their accuracy.  Nor does it address the trustworthiness of the records. See Bell, 2004 WL 1472002, at *2. Therefore, the State failed to establish that the records of St. Catherine and Memorial were the business records of O.A.^[3]

In sum, under these facts, the State failed to show the St. Catherine and Memorial documents were the business records of O.A.^[4]  Therefore, because the State provided no other exception to the hearsay rule allowing for their admission, we conclude the records are inadmissible hearsay and the trial court abused its discretion in admitting them.  Cf. Harris v. State, 846 S.W.2d 960, 964 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d) (concluding a manufacturer=s certificate of origin was incorporated into the records of car dealership and admissible under 803(6) as the dealership=s record because the certificates were trustworthy and custodian=s testimony revealed they were kept in the dealer=s ordinary course of business).^[5] 

B. Was the Admission of the Records Harmful Error?

Having concluded the trial court erred in admitting the records of St. Catherine and Memorial as the business records of O.A., we must now determine whether that error was harmful. When analyzing harm, Rule of Appellate Procedure 44.2 determines our standard of review, depending on the nature of the injury.  See Tex. R. App. P. 44.2; Easley v. State, 986 S.W.2d 264, 267 (Tex. App.CSan Antonio 1998, no pet.).  When the error is not constitutional in nature, as here, it must be disregarded unless it affects a substantial right.  See Tex. R. App. P. 44.2(b); Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002); Fox v. State, 115 S.W.3d 550, 563 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). Under Rule 44.2(b), a substantial right is affected if: A(1) the error had a >substantial and injurious= effect or influence in determining the jury=s verdict or (2) leaves one in grave doubt whether it had such an effect.@ Davis v. State, 22 S.W.3d 8, 12 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  

After reviewing the medical records at issue, we conclude they are either irrelevant or cumulative of other evidence admitted without objection and consequently, had no effect on appellant=s substantial rights.  Neither the records of St. Catherine nor Memorial contain any statements other than those made by Tambra or by her treating physicians describing Tambra=s injuries and examination results.  There are no statements in the records describing how Tambra received her injuries or who may have inflicted them.^[6]  The records contain only medical information. 

The ten pages of records from Memorial contain bone-density graphs and reports showing Tambra has osteoporosis.^[7]  However, nothing in Memorial=s records has any bearing on the injuries Tambra suffered as a result of the altercation with appellant.  Therefore, Memorial=s records are irrelevant to this case and do not affect appellant=s substantial rights.  Id. 

The eight pages of imaging reports from St. Catherine confirm Tambra=s broken left arm and state that she experienced pain.  The records of O.A., to which appellant made no objection at trial, also show Tambra had a broken left arm.  The State further showed Tambra suffered a broken arm by introducing a photograph of her arm with a cast on it.  Thus, the State proved Tambra suffered a broken arm by evidence other than the records of St. Catherine contained in Exhibit 5.  In addition, Exhibit 6, Tambra=s medical records from another facility which were properly admitted, contains five pages of records from St. Catherine identical to those contained in Exhibit 5, making most of St. Catherine=s records in Exhibit 5 cumulative. 

In sum, the improperly admitted records  had no substantial effect or influence on the jury=s verdict, and we are not in grave doubt as to whether it had such an effect. See Davis, 22 S.W.3d at 12; Franks v. State, 90 S.W.3d 771, 805B06 (Tex. App.CFort Worth 2002, no pet.) (holding that because the complained‑of testimony was mostly cumulative of other evidence introduced in the case, no harm attached); Mack v. State, 928 S.W.2d 219, 225 (Tex. App.CAustin 1996, pet. ref=d) (ruling error is not reversible Aif other evidence at trial is admitted without objection and it proves the same fact or facts that the inadmissible evidence sought to prove@). Thus, we disregard the error.  See Tex. R. App. P. 44.2(b).  Accordingly, appellant=s sole issue is overruled.

For the foregoing reasons, the judgment of the trial court is affirmed.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed December 14, 2004.

Panel consists of Justices Yates, Fowler, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The affidavit accompanying Exhibit 5 was not properly notarized.  Appellant claims in her brief that the whole of Exhibit 5 is inadmissible because it fails to comply with 902(10) in that the affidavit is not notarized. See Tex. R. Evid. 902(10).  At oral argument, however, appellant conceded that trial counsel failed to properly preserve this error.  When the records were offered, appellant=s counsel stated: AIn regard to State=s Exhibit[ ] 5 . . . we do find the affidavit is proper . . . .@  Because error was not preserved, appellant cannot now complain that Exhibit 5=s affidavit was not notarized.  See Tex. R. App. P. 33.1(a); Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998) (stating to preserve error, the complaining party must make a timely, specific objection to the trial court and obtain an adverse ruling).

^[2]  Specifically, Rule 803(6) provides:

(6) Records of Regularly Conducted Activity.  A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.  ABusiness@ as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

Tex. R. Evid. 803(6).

^[3]  Although common knowledge suggests that O.A. and similar medical facilities would indeed rely on the accuracy of medical records from other healthcare providers, our caselaw requires more.  See Bell v. State, ___ S.W.3d ___, ___; No. 01-02-01258-CR, 2004 WL 1472002, at *2 (Tex. App.CHouston [1st Dist.] July 1, 2004, no pet.).  Here, there is nothing in the record to indicate that O.A. incorporated the records of other healthcare providers into its own records or typically relied on the accuracy of the records of other providers.

^[4]  Because the business records of St. Catherine and Memorial do not meet the first two requirements set forth in Bell, and are thus inadmissible hearsay, it is unnecessary to discuss the third requirement of trustworthiness.  See id. 

^[5]  In Bell and Harris, the custodian of records actually testified at trial to establish the 803(6) predicate; the business records were not submitted with affidavits.  See id. at *3; Harris v. State, 846 S.W.2d 960, 963B64 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d).  In Bell, the court heard specific testimony regarding the business=s reliance on the third-party documents.  2004 WL 1472002, at *3.  Such testimony is lacking in this case, making O.A.=s reliance speculative.

^[6]  In contrast, the records of O.A., to which appellant did not object at trial, contain Tambra=s statement:  AI was assaulted at 8:45 pm Sat., 5-25-02.  Was repeatedly hit on arms, head, face [sic] with fists.@

^[7]  In addition, two of the documents are photocopies, resulting in the submission of two identical records.